IDENT/IAFIS: The Batres Case and the Status of the Integration Project (Cont)
We determined, however, that WIN/AFIS had confirmed the lookout for Batres and had attempted to contact the Border Patrol to advise it of the match. But WIN/AFIS did not have a current telephone number for the Santa Teresa Border Patrol Station because the station had recently moved from a temporary location to a new, permanent location, and the Border Patrol had failed to provide the updated telephone numbers to WIN/AFIS. Consequently, WIN/AFIS did not make contact with the agent to inform him of the match, and Batres was voluntarily returned to Mexico without his true identity being discovered and confirmed.
At approximately 8:55 a.m., four hours after the agent had received the IDENT hit for Batres, and after Batres already had been returned to Mexico, WIN/AFIS personnel paged a supervisory Border Patrol agent who works on an IDENT user group and was detailed to Washington, D.C., at the time. WIN/AFIS informed this supervisory Border Patrol agent that around 5:00 a.m. WIN/AFIS had received automatic IDENT notification that the agent in Santa Teresa had entered an alien into IDENT and received a red-line alert. The WIN/AFIS personnel told the supervisory Border Patrol agent that their fingerprint comparison confirmed that Batres was the person wanted in Oregon on an outstanding warrant. The WIN/AFIS personnel explained that they had been attempting to call the processing agent since 5:00 a.m. to inform him of the confirmation, but they had been unable to reach him. The supervisory Border Patrol agent provided WIN/AFIS with the new telephone number of the Santa Teresa Station.
The supervisory Border Patrol agent said he immediately telephoned the supervisory agent in Santa Teresa whom the apprehending agent had informed of the red-line hit, and informed him of the situation. The supervisor in Santa Teresa attempted to contact the apprehending agent by radio, but another Border Patrol officer reported that Batres already had been turned over to Mexican immigration officials and released.22
In addition to confirming the lookout match, WIN/AFIS ran a criminal history check on Batres on January 18, which included a "wants and warrants" check. At the request of El Paso Sector Border Patrol officials, WIN/AFIS personnel faxed all of this information concerning Batres to the EL Paso Sector Intelligence Unit. Acting Deputy Chief Danois Montoya assigned the new El Paso Sector Intelligence Officer, Stuart Gary, to review the materials, as well as any other relevant information that he could gather through INS databases, to determine the extent of Batres' criminal and deportation record and to assess the significance of the mistake that had been made in releasing him. Montoya stated that while Gary had just recently transferred to the El Paso Sector Intelligence Unit, he was selected for this assignment based on his reputation as an agent with the INS Office of Internal Audit (OIA).
After reviewing the information, Gary informed Montoya that Batres did in fact have a significant criminal record as well as a prior deportation, and that the release of such an individual - who also had an outstanding arrest warrant - was a significant error by the Border Patrol. Montoya stated that he believed that the arresting agent was at fault for failing to bring the red-line hit to the attention of his immediate shift supervisor, and that based on that he believed that disciplinary action should be initiated against the arresting agent.
Montoya next relayed the information about Batres' record and his release to the El Paso Sector Chief Patrol Agent and the Patrol Agent in Charge (PAIC) of the Santa Teresa Station, James Gonzales. Following standard Border Patrol protocol, Gonzales directed the Border Patrol personnel involved in the incident to write official memoranda to the Chief Patrol Agent documenting their actions regarding the apprehension and release of Batres. This included the arresting agent, the Assistant PAIC for the Santa Teresa office, and the supervisory Border Patrol agent whom the arresting agent had informed of the hit prior to Batres' release. Montoya said that given the scope of the mistake that had been made, the Border Patrol immediately forwarded all of the relevant information to the Border Patrol's Labor Management Relations personnel to review for appropriate disciplinary action against the arresting agent. Montoya stated that he did not request any further investigation by the INS OIA because he felt that his office had gathered all of the relevant information in connection with the incident.23
Unfortunately, despite clearly recognizing the significant mistake that had been made in releasing Batres and discussing the simple steps which could have avoided further mistakes with respect to Batres, Border Patrol officials did not take these steps. Montoya said that on January 18, 2002, he specifically discussed with PAIC Gonzales and perhaps other officials the possibility of posting in IDENT and elsewhere a warning about Batres, reflecting his aggravated criminal record, prior deportations, current arrest warrant, and the fact that he had been improperly released before this information was discovered. In fact, it was possible to enter such a warning into Batres' ENFORCE/IDENT records, and such a warning would have alerted any agent who apprehended Batres about his extensive criminal record and therefore would have resulted in his detention for prosecution.
However, for reasons that he could not fully explain, Montoya never assigned anyone to post such a warning about Batres. Montoya explained that Border Patrol officials were focused on addressing the issue in a broader context by disciplining individuals who made mistakes and planning a policy that would require the posting of an IDENT warning for all aliens who are improperly released, not just Batres. Unfortunately, Batres was erroneously released again the very next day. Remarkably, Montoya acknowledged that as of early February 2004 this policy of posting warnings in IDENT for improperly released aliens has been communicated only orally and has not been documented in writing.
Second Apprehension of Batres - January 19, 2002
The next evening, on January 19, 2002, another Border Patrol agent encountered Batres several miles west of the Columbus, New Mexico, port of entry, as Batres again was attempting to illegally enter the United States. The agent apprehended Batres without incident. Batres once again provided his name as Maximiliano Silerio-Esparza. The agent took Batres to the Columbus Border Patrol Processing Center, where the agent was assisted by a second Border Patrol agent in processing him.
When the second agent entered Batres into IDENT, a lookout hit appeared for Batres. Unlike the previous day, WIN/AFIS contacted the arresting agent a short time later and advised her that there was an open arrest warrant for Batres in Oregon. The agent then contacted the Multnomah County Sheriff's Department in Oregon, where the warrant had been issued. Because of the nature of the offense underlying the warrant - possession of dangerous drugs - the judge issuing the warrant had only authorized extradition within a limited "shuttle range" due to the expense of transporting and detaining arrestees. At the time of the Batres case, the "shuttle range" area included Oregon, Washington, western Idaho, and western Montana.24 As a result, the Sheriff's Department advised the Border Patrol agent that it would not extradite Batres.
The arresting agent then advised the acting supervisory Border Patrol agent of the situation. The supervisor authorized the voluntary return of Batres to Mexico, and instructed the agent to create a brief summary on Batres' I-213 Form (Record of Deportable/Inadmissible Alien), noting the reason for the return of Batres. The agents then voluntarily returned Batres to Mexico.
The narrative on the I-213 Form, written by an agent who assisted in processing Batres on January 19, stated that the Oregon authorities declined extradition and that the Border Patrol supervisor approved Batres' voluntary return to Mexico. Under the section of the I-213 for Batres' Criminal Record, "none known" was filled in. Although the arresting agent completed the information blocks on the I-213 Form, she noted that she did not actually enter the words "none known" in the box for Criminal Record; rather, the system automatically enters this phrase in the absence of an entry from the agent.
In a memorandum to Border Patrol Headquarters following Batres' attack on the two nuns in Oregon, Chief Patrol Agent Barker stated that the standard operating policy for the El Paso Sector was to thoroughly check the background of any subject who returns a lookout in the IDENT system. This was not a written policy, at least at the time that Batres was arrested. However, the Border Patrol agents involved in processing Batres on January 19 said that in the case of a confirmed lookout hit they would have either conducted the criminal history checks themselves or ensured that they were conducted. Yet, none of these agents had any memory of doing a check or ensuring that it was done in the Batres case, and all said they had no knowledge that Batres had a criminal record.
The supervisory Border Patrol agent who approved Batres' voluntary return stated that in Batres' case, where the lookout resulted in a confirmation from WIN/AFIS and a valid FBI number, it was his responsibility to "ensure that a further records check for any additional criminal history on [Batres] were conducted." He said that both he and the apprehending agent "knew from experience that an individual with a "Red-line Alert" requires a lot more investigation into his background and criminal history before making a decision to allow that individual a voluntary return."
The arresting agent stated that she was unsure whether Chief Barker's December 14, 2001, memorandum was posted at the time that Batres was apprehended, but she acknowledged understanding that criminal history checks should be made when a red-line hit was confirmed. However, she could not recall specifically querying NCIC herself or requesting another agent to make the query. She said that she believed that the criminal history checks were done and that the results were negative, based on the fact that the I-213 contained the entry "none known" in the Criminal Record block.
The Border Patrol agent who assisted the arresting agent in processing Batres stated that she was aware of Chief Barker's December 14, 2001, policy statement and that she believed that she complied with it. While she could not specifically recall querying Batres' FBI number for criminal history or asking anyone to do so, she stated that it was her practice to routinely conduct criminal history inquiries based on confirmed WIN/AFIS lookouts. She also said that she would not have processed Batres for a voluntary return if she had information about his prior deportation or criminal convictions.
Yet, the evidence we found shows that no criminal checks were done. A search of the NCIC and TCIC databases did not identify any queries by the Border Patrol on January 18 or 19, 2002, for the name Batres, his known aliases, or the FBI number provided by IDENT.25 A review of the Sector radio logs also shows no indication that a criminal history check was requested or conducted. Further, the I-213 Form does not address in any detail what steps, if any, were taken with regard to determining Batres' criminal history. Finally, neither the arresting agent, the processing agent, nor anyone else in the office had any recollection of either checking Batres' criminal history record or of asking anyone else to do it.
(cont) |
